Open Records Decision No. 228
October 19, 1979

	Re:  Whether the North Texas Commission is a governmental body under the 
Open Records Act.

Mr. John M. Thorne
Thorne, Thorne & Robertson, Inc.
P. O. Box 591
Grand Prairie, Texas  75051

Dear Mr. Thorne:

	The North Texas Commission is a private, nonprofit corporation chartered for the 
purpose of promoting the interests of the Dallas-Fort Worth metropolitan area.  The 
Commission has received a request for information which would be available under the 
Texas Open Records Act, V.T.C.S. article 6252-17a, if the Commission is within the 
definition of “governmental body” in section 2(1) of the Act.  The relevant part of the 
definition provides that

'Governmental body' means:

. . . .

	(F)	the part, section, or portion of every organization, 
corporation, commission, committee, institution, or agency which is 
supported in whole or in part by public funds, or which expends 
public funds.  Public funds as used herein shall mean funds of the 
State of Texas or any governmental subdivision thereof; . . .

	The person requesting the information contends that the Commission is within 
this definition because it receives public funds.  Under a sample contract submitted by 
the Commission, the City of Fort Worth was obligated to pay the Commission $80,000 a 
year for three years.  The Commission also receives funds from several other units of 
government.  The Commission contends that money received from the City of Fort 
Worth and other units of government is paid pursuant to contracts to provide services, 
and that it is in the same position as any other private vendor who sells goods or services 
to a governmental body.

	We believe it is clear that the legislature did not intend to extend the application 
of the Act to private persons or businesses simply because they provide specific goods or 
services under a contract with a governmental body.  See Open Records Decision No. 1 
(1973) (bank with governmental body's account not subject to Act).  However, we have 
examined the contract in question here, and we do not believe it imposes a specific and 
definite obligation on the Commission to provide a measurable amount of service in 
exchange for a certain amount of money as would be expected in a typical arms-length 
contract for services between a vendor and purchaser.  Specifically, one provision of the 
contract purports to obligate the Commission to:

(e)	Continue its current successful programs and implement 
	such new and innovative programs as will further its 
	corporate objectives and common City's interests and activities.

	Even if all other parts of the contract were found to represent a strictly arms-
length transaction, we believe that this provision places the various governmental bodies 
which have entered into the contract in the position of “supporting” the operation of the 
Commission with public funds within the meaning of section 2(1)(F).  See Schwartzman 
v. Merritt Island Volunteer Fire Department, 352 So.2d 1230 (Fla. App. -- 4th Dist. 
1977), cert. den., 358 So.2d 132 (Fla. 1978); Byron, Harless, Schaffer, Reid and 
Associates v. State ex rel. Schellenberg, 360 So.2d 83 (Fla. App. -- 1st Dist. 1978).

	We note that we are not holding that any contract with a governmental body 
causes the records of a private contractor to be open under the Open Records Act.  Nor 
are we holding that all records of a private entity are necessarily required to be made 
public if a portion of the entity is found to be supported by public funds.  We are 
holding, however, that these records of the North Texas Commission are public under the 
Open Records Act since it receives funds from several public entities and has entered into 
contracts with these entities which result in at least a portion of the public funds paid to 
the Commission being used for the general support of the Commission rather than being 
attributable to specific payment for specific measurable services.

	It is our decision that the receipt of public funds for support of the general 
activities of a private organization brings that organization within the definition of 
“governmental body” as defined in section 2(1)(F) of the Act, and that the information 
requested is public.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by William G Reid
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid